Special Standing Committee

[Mr. George Stevenson in the Chair]

Adoption and Children Bill

Clause 81 - Giving parental responsibility prior to adoption abroad

Robert Walter: I beg to move amendment No. 161, in page 44, line 27, leave out 'at all times'.
 The clause is one of several that deal with intercountry adoption, a subject in which I have taken an interest for some years. Not only was I a Front-Bencher when the House debated the Children's Commissioner for Wales Act 2001, which legislation had some relevance to intercountry adoptions, but I have some personal experience of those who have—not without considerable heartache—gone through the procedure. 
 It is with such heartache in mind that I move the amendment. Clause 81(4) states: 
 ''An application for an order under this section may not be made unless at all times during the preceding 10 weeks the child's home was with the applicant or, in the case of an application by a married couple, both of them.''
 That phrasing is overly prescriptive and pedantic. I can see the basic idea behind the provision, which is that the child should know the prospective adopters and should have spent some 10 weeks in their home. The problem is the phrase ''at all times''. I have looked through the Hague convention and cannot find in it anything that is so prescriptive. 
 I put it to the Committee that if a legal challenge or contest were mounted, a clever lawyer might be able to scupper a perfectly legitimate adoption on the ground that, for example, the child had visited another relative during the qualifying period. We must at all times remember that some people's motives may not always be to further the best interests of the child and that they might seek to undermine an adoption procedure by arguing that, in the strict legal sense, the child had not ''at all times'' during those 10 weeks been with the applicant—or applicants: if the application is made by a married couple, the child should have been with ''both of them''. I foresee lawyers getting out notebooks and asking people whether they were together ''at all times'' with the child during the qualifying period. 
 The words ''at all times'' are superfluous to the basic thrust of the clause, which is headed ''Giving parental responsibility prior to adoption abroad''. The Committee should consider deleting those three little words because of the pain and grief they might cause to prospective adopters or to a child who feels that its 
 home has been with the applicant or applicants for the preceding 10 weeks only to be told that, in fact, it has not been with them ''at all times'' because it has been away for a couple of days. 
 The amendment is common sense. The clause is pedantic and overly prescriptive and the words ''at all times'' should be deleted.

Jacqui Smith: Welcome back to the Committee, Mr. Stevenson.
 We are continuing our consideration of the clauses that deal with intercountry adoption. Clause 81 allows the High Court to make an order to transfer parental responsibility for a child to prospective adopters prior to adoption overseas. It replaces section 55 of the Adoption Act 1976. Although it is likely to be used only rarely, it is intended to allow a child from the United Kingdom to be adopted overseas if a court agrees that that is in the child's best interests. It may be used to allow prospective adopters from a Hague convention country to adopt a looked-after child who is assessed to be suitable for overseas adoption in that country. It could also be used when children can no longer live with their birth parents and their best interests are served by adoption by godparents, distant relatives or others who are significant to them and who live outside the British islands. 
 We must ensure that safeguards are in place and that the provision is not abused or used as a shortcut by those who should go through the usual adoption procedures. An order cannot be made under the clause if the prospective adopters meet domicile or habitual residence requirements that would allow an adoption order to be made in England and Wales. In other words, an order cannot be made if prospective adopters currently live in this country. 
 Consistent with the rules on adoption—to respond to the points made by the hon. Member for North Dorset (Mr. Walter)—the child must have had his home with the prospective adopters for a minimum of 10 weeks prior to the order being applied for; the prospective adopters must also meet any other requirements that are prescribed in regulations. The amendment would remove the phrase ''at all times'' from the requirement that the child should have had its home with the prospective adopters for the preceding 10 weeks. I understand that the hon. Gentleman intends to add clarity, but the amendment would remove clarity from the residency requirements and might thus put children at risk. 
 Giving the child time to live with the prospective adopters before the order is made will allow a relationship to be built up between child and adults. If the order is made, the child will be taken from familiar surroundings to an entirely new country and culture, so it is important to ensure that the child has the opportunity to form a bond with the prospective adopters and that it accepts the impending move. It is also important that the court is able to satisfy itself that making an order giving all parental responsibility to the prospective adopters is in the child's best interests. That can be done only if it has been possible to observe 
 the child and the prospective adopters together and confirm that the adults will be able to meet the child's needs. 
 The phrase ''at all times'' makes it clear that the child should have had his home with the prospective adopters for the previous 10 weeks. That means not that they should have spent 24 hours a day, seven days a week together, but that the child should have been living with the prospective adopters for a full 10 weeks, spending time with them and doing the things that a child would normally do at home, such as eating, sleeping and playing.

Robert Walter: I thank the Minister for her interpretation of ''at all times'', but my concern is about how a court might interpret the phrase. Elsewhere in the Bill, the term ''habitually'' is used. Is that not better than ''at all times''?

Jacqui Smith: The hon. Gentleman, rightly, raises the issue of consistency and refers to other places in the Bill in which ''habitually'' is used. However, the use of ''at all times'' is consistent with section 13 of the 1976 Act, which requires the child to have had his home with the adopters at all times. Obviously, the meaning of the phrase will depend on the facts of the case, but it has not caused problems up to now, and the use of the phrase itself is not unprecedented.
 I understand the hon. Gentleman's concerns, but can only reiterate that we believe that removing the phrase would remove some clarity and might cause disputes about how much of the preceding 10 weeks a child needs to have lived with prospective adopters and when a home is really a home. Casting doubt on those matters would open a loophole that might be exploited and would not be in the child's best interests. I hope that I have allayed his concerns by explaining the interpretation of the phrase and the extent to which it is consistent with other legislation, and that he will feel able to withdraw his amendment.

Robert Walter: I remain concerned. I suggested in my intervention that ''habitually'' might be better than ''at all times''. By deleting ''at all times'', I seek to avoid causing unnecessary suffering to the child or prospective adopters.

Jacqui Smith: Perhaps I can help the hon. Gentleman. We believe that ''habitually'' has a particular meaning that might not be established within 10 weeks. It tends to mean that more permanent ties have been established in relation to habitual residence, rather than that the people involved are simply living with each other. Ironically, therefore, ''habitually'' might impose a stronger or tighter restriction on the clause than the wording that the Government propose.

Robert Walter: I thank the Minister for that intervention. I hope that family lawyers will read the Hansard of our proceedings for definitions of ''at all
 times'' and ''habitually''. In the knowledge that lawyers love to pore over such documents, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 81 ordered to stand part of the Bill.

Clause 82 - Restriction on taking children out

Robert Walter: I beg to move, amendment No. 162, in page 44, line 38, leave out subsection 1(a).
 Having spent last week at the Parliamentary Assembly of the Western European Union, I have drawn the short straw this morning in terms of moving amendments. I am perturbed by the provision that the amendment would delete—a restriction on taking children out. Clause 82(1) refers to: 
 ''A child who— 
 (a) is a Commonwealth citizen, or 
 (b) is habitually resident in the United Kingdom,''. 
My concern focuses on (a). I thought that in making the new law, particularly in the clauses on intercountry adoption, we were making law for the United Kingdom, not for passing foreigners. To include children who are Commonwealth citizens and who by definition are not habitually resident in the United Kingdom, we are making law for passing foreigners. Why specify a Commonwealth citizen? Why not say a citizen of the European Union or some other definition of passing foreigner? 
 I looked at the Hague convention and found nothing to say that the provision was one that we should be making. In fact, the provision seems to be contrary to article 14 of the convention, headed ''Procedural requirements in intercountry adoption'', which states: 
 ''Persons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence.'' 
I thought that meant that the United Kingdom could not authorise the adoption of a child who was a citizen of another Commonwealth country or who was habitually resident in another Commonwealth country, unless by acting in contravention of the Hague convention. I do not imagine that it was the intention of the Minister or of those who drafted the Bill that we should contravene that convention. 
 The Bill contains a dog's breakfast of geographical restrictions; this is reflected in some of the Opposition amendments. It refers sometimes to ''the British Islands'', sometimes to England and Wales, sometimes to the United Kingdom—and sometimes I am confused about exactly what it means.

Henry Bellingham: I, too, am confused and have tabled some amendments. ''The British Islands'' includes, historically, the Republic of Ireland, although we now prefer to talk about ''these islands''. Some believe that the ''United Kingdom'' includes the Isle of Man and the Channel
 Islands, whereas others do not. Does my hon. Friend consider the expression ''United Kingdom'' to include those three island groups?

Robert Walter: I thank my hon. Friend for his intervention. There is an attempt elsewhere in the Bill to suggest that when reference is made to the United Kingdom, that includes the Isle of Man and the Channel Islands. However, in other places the term ''the British Islands'' is used. From the way in which it is expressed in the Bill and on the basis that we cannot make law for another sovereign state—the Republic of Ireland—I assume that phrase to mean, the United Kingdom and the Isle of Man and the Channel Islands.
 I am concerned that we have picked on another group of sovereign states and sought to include their citizens in the Bill's ambit. There does not seem to be any reason for picking states that are members of the Commonwealth, other than our historical associations with such states. We have more contemporary associations with children who are citizens of European Union member states or of the Irish Republic, but they will not be covered by the clause. 
 My argument in favour of removing subsection (1)(a) is expressed most forcefully by reference to the clause's inconsistency. Not only is there inconsistency between the geographical definitions that appear in the Bill, but article 14 of the Hague convention seems to preclude us from including such a provision based on the criterion that a child is a Commonwealth citizen. Of course we can impose the restriction contained in clause 82 in respect of a child who is habitually resident in the UK, but we are treading on dangerous ground in international law if we try to contravene article 14 of the Hague convention and widen our jurisdiction to children who happen to be Commonwealth citizens and happen to be in the UK or are under the jurisdiction of a British court at the time.

Tim Loughton: What if a country's membership of the Commonwealth is suspended after the legislation has come into force? Would such a country be covered by the legislation—for example, would the Bill apply to a citizen of Pakistan, which is currently suspended?

Robert Walter: My hon. Friend poses an interesting question. I have no doubt that there would be an interesting debate in a court's consideration of a case centering on the status of a citizen of a Commonwealth country that had been suspended from the Commonwealth.
 The Commonwealth is an association of countries, some former dominions of the British empire and some former colonies. Some retain the status of British overseas territories, for which responsibility rests with the British Government, and in latter years some have chosen to join the Commonwealth having had no previous imperial associations with the UK or Great Britain. 
 I have explained how the subsection is inconsistent. I believe that the clause flies in the face of our international obligations under the Hague convention and I therefore ask the Committee to accept the amendment.

Jacqui Smith: We seem to be getting bogged down in clause 82, so perhaps I should clarify its purpose. Clause 82 is not about citizenship or which sort of people it would be possible to make adoption orders for in this country. It imposes restrictions on removing children for adoptions in other countries, whether convention adoptions or others. Our debate focuses on which children should be protected under the restrictions that the clause imposes on taking children out of the country for the purpose of adoption.
 Clause 82 ensures that children who are either Commonwealth citizens or habitually resident in the UK cannot be taken out of the UK for the purposes of adoption unless those involved meet certain conditions. Those conditions are that the proposed adopters are parents, guardians, relatives or step-parents of the child, or that they have obtained a court order under clause 81—which sets out the process for transferring parental responsibility—so that they may adopt the child in their state of origin. 
 The clause replicates and strengthens section 56 of the Adoption Act 1976. Specifically, it adds protections for those children resident in the UK who are not Commonwealth citizens. In other words, section 56 of the 1976 Act already protects Commonwealth citizens. I do not want to be mischievous, but it is unclear to me whether it is now the official Opposition view that citizens of the Commonwealth should be reclassified as ''passing foreigners''. It seems disrespectful of the nature of the commitment that we owe to citizens of the Commonwealth to categorise them in such a way. 
 The clause also ensures that it is not possible to avoid being guilty of an offence by arranging for someone else to remove the child from the country. Anyone removing the child from the UK would be caught by the restrictions, as would those who arranged or negotiated for the child to be removed, and the person who ultimately adopted the child.

Robert Walter: I was conscious of the Minister's disapproval when I spoke of Commonwealth citizens as though they were passing foreigners—it was meant lightheartedly. I am concerned about why that particular group has been singled out. We have historical links with the Commonwealth, but by a succession of treaties we now have links with citizens of the European Union. Perhaps the Minister can help by telling me what sort of child would be a Commonwealth citizen and not habitually resident in the United Kingdom.

Jacqui Smith: I am always happy to help the hon. Gentleman, and I was just coming to that point. The use of the terms ''Commonwealth citizen'' and ''habitually resident'' is necessary, for reasons that I will explain, to cover people who I suspect even the hon. Gentleman would agree should be protected under the clause.
 The amendment would remove the restrictions on removing children who are Commonwealth citizens from the UK for the purposes of adoption. That would remove a protection that currently exists under the 1976 Act and might put at risk some children who are 
 in the UK but who are not considered to be habitually resident here. A British citizen who is not habitually resident in the UK would be protected by clause 82 without the use of the term ''Commonwealth citizen''—that was the reason for its inclusion in the 1976 Act. 
 The term ''Commonwealth citizen'' includes British citizens, British dependent territories citizens, British nationals overseas, British overseas citizens and other British subjects. That means that a British child who has not been resident in the UK for long enough to be considered habitually resident here would still be protected by the clause. The removal of ''Commonwealth citizen'' would mean that such people would not be protected from removal from the country for adoption overseas. 
 Given the historic links between the UK and the Commonwealth, we know that many children who are Commonwealth citizens come to the UK for schooling and other purposes. It is important to ensure that once the Bill comes into force they will be, as they are now, afforded protection from being taken overseas by individuals for adoption.

Robert Walter: I hear the Minister's definitions of the people who would be in the UK because they are the children of Commonwealth citizens. However, most of her definitions could apply equally to citizens of the EU, who might be here through their rights of free movement within the EU. Why have the Government not included a child who is an EU citizen?

Jacqui Smith: I always enjoy it when Opposition Members argue in favour of our increasing the significance of Europe as opposed to the Commonwealth. I will correct myself if I am wrong, but I suspect that ''European Union citizen'' does not have the legal strength of ''Commonwealth citizen'' and would not imply the protection that we are trying to achieve under clause 82. If the hon. Gentleman were arguing for a shift of focus away from the Commonwealth towards Europe, that would be interesting.

George Stevenson: Order. If the hon. Gentleman were trying to do that, I would put a stop to it quickly.

Jacqui Smith: You are right to bring us up short, Mr. Stevenson.
 I hope that I have made the argument for ''Commonwealth citizen'' being necessary to protect British citizens who would not otherwise be considered habitually resident. I have also explained why the provision continues measures in the 1976 Act and why the Government consider it reasonable to provide the protection in the clause to Commonwealth citizens, given the historical links between the UK and the Commonwealth. For a range of reasons such as medical treatment or schooling, such children could be in the UK and need its protection.
 I hope that I have also reassured the Committee that the clause is about restrictions on the removal of children for adoption. It does not have some of the effects on convention adoptions that the hon. Gentleman suggested, so I hope that he will feel able to withdraw his amendment.

Robert Walter: As our discussion of the amendment continued, I became more convinced that the subsection was somewhat outdated. The Minister chided me because I seemed to want less emphasis on the Commonwealth and more on the European Union, but all I want is to make good law and to ensure that the provisions are up to date.
 As the Minister will recall, the 1976 Act was brought into force when this country had been a member of the European Community for only three years. Now, almost 30 years later, the European Union has grown in size and importance and the citizens of its member states—I will not stray into calling them EU citizens—have rights of free movement enabling them to live wherever they want in the EU. The Minister's justification for the use of the words ''Commonwealth citizen'' could apply equally to other UK obligations. 
 I hope that the Minister will entertain the points that I have made, especially the one about article 14 of the Hague convention, which I do not think that she answered. Perhaps later, in another place or on Report, she will feel minded to re-examine my argument that the provision is not only contrary to article 14, but an anomaly given our current treaty obligations to other EU member states. I do not want to force the matter to a vote, and I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 82 ordered to stand part of the Bill.

Clause 83 - Overseas adoptions

Robert Walter: I beg to move amendment No. 164, in page 46, line 6, leave out from beginning to first '''regulations''' in line 7.
 It is me again. I explained that earlier amendments were intended to remove the possibility of distress and heartache to those who had adopted children or those who had been adopted. Clause 83(2) and the definition it contains cause me concern. It states: 
 '''Children' includes persons who were children at the time the adoption was applied for''.
 That strikes me as an attempt to make law retrospective. Subsection (2) begins: 
 ''The description specified by the order must be a description of adoptions of children which— 
 (a) appear to the Secretary of State to be effected under the law of any country or territory outside the British Islands, 
 (b) are not Convention adoptions, and 
 (c) meet any requirements prescribed by regulations made by the Secretary of State.'' 
The whole provision is intended to provide definitions. 
 If, in defining a child over whom some legal jurisdiction is to be brought about under the clause, we say that a person is a child if it was a child when the 
 adoption was applied for, there might be certain consequences. A child might have been legally adopted after all the relevant procedures were completed, but something might subsequently—after the child had become an adult—be found to have been wrong in the adoption procedure. The court could make a retrospective order under the clause, which could lead to great pain and suffering for the adoptive parents and the child. 
 If we are to apply the definition to someone who has long since ceased to be a child but who was at the time of the action in question defined as a child, we are on the road to a definition that can bring nothing but pain and suffering to human beings who, in earlier years, have probably been through a traumatic and distressing time. The Bill should define children as the word is commonly understood. It should not redefine it for the purposes for which regulations might be made as though a child was something else—someone who has ceased to be a child but just happens to have been a child at the time when the adoption order was applied for. 
 The amendment is another attempt to tidy up the Bill for the benefit of those for whom we are legislating. We should not give lawyers or others the opportunity to go back and dig up information that could cause unnecessary pain and suffering.

Jacqui Smith: Clause 83 allows the Government to put in place arrangements for recognition in the United Kingdom of adoption orders made overseas. It permits the Secretary of State to make an order specifying the adoption orders to be recognised while protecting the status of those adopted in the past from countries on the old designated list. The clause also allows the Secretary of State to make regulations setting out the criteria that must be met by procedures in an overseas country if it is to be included in the list of overseas adoptions to be recognised. The clause allows us to review the list of countries whose adoption orders we recognise, and it allows us to protect the status of those adopted—[Interruption.] I can tell that I have the Committee's absolute attention and that, despite the sounding of the fire alarm, hon. Members are concentrating extremely hard. I shall plough on.
 The clause allows us to protect the status of those adopted under the current designated list while we review which countries' orders we should recognise in future. It also allows the Secretary of State to set out in regulations the criteria that must be met by a country's system if it is to be included in the order. 
 Subsection (2), to which the amendment refers, clearly states that adoption orders can be recognised only when they have been made in respect of a child. The clause provides a definition of children that includes persons who were children when the adoption was applied for to ensure that overseas adoption orders can be recognised if proceedings were started prior to the age of 18 but the adoption order was not made until the child had reached 18. 
 The hon. Gentleman's concern that the provision might enable decisions to be made retrospectively is misplaced. Rather, the clause makes the recognition of 
 overseas adoption orders consistent with our practice on the making of domestic adoption orders. Clause 47(5) makes clear that in domestic adoptions 
 ''References . . . to a child, in connection with any proceedings . . . for adoption . . . include a person who has attained the age of 18 years before the proceedings are concluded.'' 
That is because, although it is important to ensure that applications are made prior to the child reaching adulthood, the court's discretion to carry out checks and schedule hearings should not be fettered by the child's age, nor should a child's best interests be overruled simply because his or her 18th birthday arrives before the proceedings are concluded. 
 The hon. Gentleman wants to remove the existing definition of children to prevent heartache and difficulties. If the amendment were accepted, the general definition of children in clause 129, which recognises a child as a person who is under 18, would apply. That would remove our ability to recognise an overseas adoption order that was made after the child turned 18 where the application and proceedings had started before they reached that age. That would be inconsistent with current domestic arrangements and is, therefore, unlikely to be in the child's best interests. Not only is the amendment unnecessary, but it might be detrimental to children's interests. I hope, therefore, that the hon. Gentleman will withdraw it.

Robert Walter: I hear what the Minister says, although I hope that she will forgive me if I was not paying full attention when the fire alarm sounded. She referred to clause 129, which states that
'''child', except where used to express a relationship, means a person who has not attained the age of 18 years''. 
The definition of children in clause 83 includes those who were children when adoption was applied for. If my understanding is correct, the Minister is suggesting that it means a better deal for those—I hesitate to use the word ''children''—who are adopted abroad in cases where the adoption procedures are not completed by the time they turn 18. I acknowledge the validity of that point, but I am concerned about the fact that the legal niceties of an adoption procedure that is started in this country or abroad may not be completed before the child reaches the age of 18: in such cases, the child would have reached adulthood and would not in normal circumstances qualify for adoption. That would be relevant to inheritance law, which may require the procedures to be completed even if the child has already reached adulthood. 
 Let me try to explain why I am still perplexed by one point, although I shall go away and think about it. To turn the clause on its head, people could undermine an adoption, saying, ''We can still challenge this overseas adoption and the procedures in this overseas adoption because the child is older than 18.'' Although the child considered himself adopted, lived with his adopted parents and felt that they were now his family to all intents and purposes, some mischievous person could take a retrospective approach, saying that the child had only just reached the age of 18 and that something was wrong when he was 16 or 17 when the procedure 
 began. A legitimate adoption could therefore be challenged after the child reached adulthood, which was why I tabled the amendment. 
 The Minister's explanation of the drafting of the clause and the purposes it serves are acceptable. My only objection is that another person might try to use the definition of children retrospectively to undermine the legitimacy of an adoption on the grounds of something that took place when the child was a child and had to all intents and purposes been adopted, although all the legal niceties had not been completed because it was an overseas adoption. I would not want us to make a law under which a child might find his adoption undermined if all the legal niceties had not been completed. I remain concerned about the use of the definition in other circumstances, because a child who had reached adulthood might feel that his adoption had been undermined, even though it was perfectly legal in his mind and in the minds of the adoptive parents.

Jacqui Smith: The hon. Gentleman appears to be concerned about the ability under the clause—and, presumably, under the corresponding subsection in clause 47, which puts the same definition on the recognition of an adoption order—for someone to undermine an adoption order made in the relevant circumstances. I am not entirely clear whether that is his objection.
 The circumstances that we are discussing are those in which an adoption order is recognised as such. We should allow for circumstances in which the application to adopt starts before the child reaches the age of 18 but is not concluded by the time he reaches 18 and the order is made after his 18th birthday. If we do not define the recognition of an adoption order in the way proposed in the clause for intercountry adoption and in clause 47 for domestic adoption, we risk creating a situation in which, for what might be seen as the arbitrary reason that the child had reached 18—even though all the correct procedures had been followed and the adoption order made—it would be impossible for the adoption order to be recognised, with, as the hon. Gentleman mentioned, all the status implications that that would have for the adopted person.

George Stevenson: I am sure that the hon. Gentleman will find that helpful.

Robert Walter: The Minister is right to allude to the principal positive reason for including the wording, which relates to the status of the child or adult and is relevant to such issues as inheritance. I am concerned—the Minister alluded to this and referred me to other clauses, such as clause 47, which I am not sure we have considered—that the definition of ''children'' may include someone who has attained the age of 18 and to whom the procedures previously applied but were not concluded. That is fine if the definition is regarded in a positive sense, but I am
 concerned that a court, a clever lawyer or someone wishing to cause mischief might regard the wording in a negative sense.
 The Minister appears to be amused. I hope that she does not feel that I was trying to cause mischief; I am not. I am trying to ensure that the sense of the clause will not cause any heartache, pain or suffering as a result of someone interpreting it to mean that if an adoption procedure had been undertaken but not technically completed before a child reached 18, the adoption may be open to challenge. That is worrying if one considers the definition from a negative standpoint. I hope that lawyers and others who try to ascertain the meaning of the definition will read the record of our proceedings to understand what we meant by inserting a definition that states: 
 '''Children' includes persons who were children at the time the adoption was applied for''. 
 The definition is meant in the positive sense in which the Minister has expressed it and not in the negative sense that has caused me some concern. Having made my point, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 83 ordered to stand part of the Bill.

Clause 84 - Modification of section 64 for convention adoptions

Henry Bellingham: I beg to move amendment No. 177, in page 46, line 28, leave out subsection (3).
 I shall not detain the Committee for more than a few moments because I am about to move an amendment to the Civil Defence (Grants) Bill in Committee Room 5. It has been a busy morning. 
 My amendment would remove subsection (3), which is completely superfluous. In the words of the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd), it is ''otiose''. I believe in trying to keep things as simple as possible and I would be grateful if the Minister would carefully consider my proposal.

Jacqui Smith: I am extremely impressed by the multi-skilling that is being demonstrated by Conservative Members. It is a shame that when a party has relatively few Members, they must rush around from Room to Room, but the electorate is to blame for that.
 Clause 84 provides for the modification of clause 64 for convention adoptions. It allows the High Court to direct that clause 64(2) should not apply or should apply only to the extent that it so directs. I shall give a little background to explain why the phraseology that the hon. Gentleman wants to remove is necessary. 
 Clause 64 provides that a child adopted in England and Wales is to be treated in law as not being the child of any person other than the adopters. The clause is necessary under the Hague convention because adoption law in the UK recognises only full adoptions, which sever all legal ties between birth parents and 
 child and create a new and irrevocable legal relationship between the child and the adoptive parents. That is not the case in all countries. The clause allows any simple adoptions—adoptions that do not constitute a full legal transfer—to be treated in the UK as full adoptions. However, where any issue of status arises and the court considers that it would be more favourable to the interests of the child to treat the adoption as anything other than a full adoption, an application may be made to the High Court so that it may direct that the adoption should no longer be treated as a full adoption. 
 In some countries, not all adoptions are full adoptions including the severing of all ties with the birth parents. There are several reasons for that: for example, certain religious faiths do not allow children to be adopted in the way that we understand the term in the UK. In those cases, adoptions may take the form of entrustment or simple adoptions, which do not have the effect of severing all legal ties with the birth parents: they may take place in circumstances in which the birth parents want to have contact with the child and that is considered to be in the child's best interests. 
 Article 26 of the Hague convention provides for the recognition of both full and simple adoptions. Article 27 allows a receiving state to convert a simple adoption into a full adoption if its law so permits and provided that the birth parents and relevant parties under article 4 of the convention have given their consent to full adoption. Where the receiving state is England or Wales, the central authority—the Secretary of State—will ensure that in all cases the birth parents are informed of the effects of a simple adoption in England and Wales and will seek to obtain their consent to a full adoption prior to a convention adoption being made in a country outside the British islands or a convention adoption order being made here. 
 Where the receiving state is not England or Wales, it is possible that the child might be brought into this country in circumstances in which simple adoptions are recognised both in the state of origin and in the receiving state, so no consent to full adoption has been given. In such cases the procedure under the proposed legislation would be that the adoption would be treated as a full adoption by operation of law, but an application might be made to the High Court in relation to the issue of status where it was considered to be more favourable to the child to treat the adoption otherwise than as a full adoption. 
 Clause 84 re-enacts provisions in the Adoption Act 1976 which were amended by the Adoption (Intercountry Aspects) Act 1999. It provides that where the court considers that it would be more favourable to treat the adoption as anything other than a full adoption, an application may be made to the High Court for directions to be made that mean that the adoption is no longer treated as a full adoption. 
 The effect of the amendment would not be a simple tidying up, as the hon. Member for North-West Norfolk (Mr. Bellingham) asserts. It would remove from clause 84 a definition of full adoption; it would not be clear what was meant by full adoption and there 
 would be doubt as to the ambit of the clause. The term ''full adoption'' would be open to interpretation, which could lead to inconsistencies or discrepancies in the treatment of different types of adoption. Given my assurances about what I accept is a complex and relatively rarely used provision, I ask the hon. Gentleman to withdraw his amendment.

Henry Bellingham: In the light of the Minister's explanation that there is a good underlying reason for the subsection, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Tim Loughton: The Minister has alluded to subsection (2)(b). The subject with which it deals is both one to which we might return later and one that we might have touched on earlier had the knife of the programming motion had not come down. Will the Minister consider article 4(c)(2) of the convention, under which
''such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,''. 
Will the Minister give the Committee her definition of the term ''freely''? The giving of consent is a bone of contention in UK adoptions, let alone in the more complicated overseas ones, and various bodies have made representations to us to ask what ''freely'' amounts to. A person who is seen to be giving consent freely might later claim that it was given under duress. Is the Minister satisfied that there will not be a challenge to the term ''freely'' as used in article 4 of the convention and subsection (2) of the clause?

Jacqui Smith: I am slightly confused about which part of the Bill is under discussion. Was the hon. Gentleman's question free-standing?

George Stevenson: We are debating clause 84 stand part, and the hon. Member for East Worthing and Shoreham (Tim Loughton) seeks clarification of subsection (2) in relation to the Hague convention.

Jacqui Smith: I had jumped ahead. I understand that ''freely'', in the context given by the hon. Gentleman, means that the consent has not been encouraged through the offering of rewards or coerced using force. However, his point about the nature of consent given in such circumstances is important. We had a lengthy discussion on the conditions surrounding the giving and witnessing of consent in relation to domestic adoptions. It might be appropriate for me to write to the hon. Gentleman outlining what similar conditions we would expect to govern consent in relation to intercountry adoptions.

Tim Loughton: I would be grateful, because the Minister referred to financial inducements, which are already covered by article 4(c)(3) of the convention. To correct her slightly, we did not fully explore the issue of consent freely given to domestic adoption because
 of the programming motion. It would be helpful if she provided a definition before we encounter the phrase again.
 Question put and agreed to. 
 Clause 84 ordered to stand part of the Bill.

Clause 85 - Annulment etc. of overseas or Convention adoptions

Robert Walter: I beg to move amendment No. 165, in page 46, line 35, leave out subsection (1).

George Stevenson: With this it will be convenient to take the following amendments: No. 166, in page 46, line 40, leave out from 'ground' to 'that' in line 41.
 No. 167, in page 47, line 5, leave out 'either of'.

Robert Walter: I do not like the clause because it suggests that an overseas or convention adoption can be annulled by the High Court
''on the ground that the adoption is contrary to public policy.'' 
That would seem to allow the annulment of adoption on political grounds. If all the procedures under the Bill have been followed, it would be cruel to annul an adoption simply on so-called public policy grounds. Amendment No. 166 merely does the same thing as amendment No. 165 in a later subsection, and amendment No. 167 is consequential on those two. 
 Article 17 of the Hague convention states: 
 ''Any decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if— 
 (a) the Central Authority of that State has ensured that the prospective adoptive parents agree; 
 (b) the Central Authority of the receiving State has approved such decision, where such approval is required by the law of that State or by the Central Authority of the State of origin; 
 (c) the Central Authorities of both States have agreed that the adoption may proceed; and 
 (d) it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorized to enter and reside permanently in the receiving State.'' 
We must envisage a case in which the central authorities in two states have agreed a convention adoption, but the High Court intervenes and decides that it is contrary to public policy and that on political grounds or grounds of political correctness—I think we intended to avoid that phrase—it does not like the adoption. I am at a loss to know in what circumstances we would not like an adoption. 
 What really concerns me about the clause is that article 40 of the Hague convention states quite simply: 
 ''No reservation to the Convention shall be permitted.'' 
However, under the clause, 
 ''The High Court may, on an application under this subsection'' 
by order annul a convention adoption or adoption order, 
''on the ground that the adoption . . . is contrary to public policy''.
Therefore, the United Kingdom, or England and Wales, or the British islands, whichever is relevant under the clause, can annul a convention adoption, even though article 40 states that if all the rules are complied with, the adoption cannot just be moved aside because it is not deemed suitable on political grounds—particularly if the decision has been taken in the light of other articles, such as article 17.

Tim Loughton: I, too, had noticed the same aspects of the convention, and wondered whether my hon. Friend detected that the Government are rowing back; I gather that although we have signed the convention, we have yet to ratify it, as is the case with the United States and several other countries.

Robert Walter: That is my understanding too. I like to think that when Ministers use the Crown prerogative to sign treaties and conventions, they do so with the full authority of the British people and will not have a problem in ratifying the treaties to bring them into our law. I am concerned that the Adoption (Intercountry Aspects) Act 1999 has the convention as a schedule, but it does not specifically include all the convention provisions.

Julian Brazier: There is a rather strange anomaly; in other contexts, such as the 1951 convention on asylum, there are huge difficulties because we are told that it is impossible to depart from the wording and from our treaty obligations. Yet apparently, in the context of a Bill on adoption, which deals with some of the most vulnerable people on earth—small children, some of whom may die if they are not adopted, as we have debated—our treaty obligations can simply be brushed aside.

Robert Walter: It does seem that there are circumstances in which we feel that we know better—or, more particularly, the High Court knows better—than those who entered into the convention obligation. I am not a great expert on international law, but, unlike the European convention on human rights, for which there is an appeal to the European Court of Human Rights, the ultimate appeal under the Hague convention remains in the hands of the Governments who signed it. Article 42 states:
 ''The Secretary General of the Hague Conference on Private International Law shall at regular intervals convene a Special Commission in order to review the practical operation of the Convention.'' 
There is no higher authority to which those who feel aggrieved can go. The highest authority in this country—the Bill will give it the power to overturn convention provisions, despite the fact that the convention provides that no reservations should be permitted—will be the High Court. Moreover, annulment could be on political grounds. That is not quite what ''public policy'' means, but it is correct speak for political grounds. If an adoption were found to be unsatisfactory despite the fact that the central authorities in both states had gone through all permitted procedures, and the child had been placed and was living happily with its new adoptive parents, the mighty High Court could still go over the top and 
 say, ''Ah, no. We are sorry, but this adoption order is null and void; we shall annul it on the grounds of public policy.'' 
 The provision is worrying and nasty. I ask the Committee seriously to consider removing all reference to the annulment of convention adoptions.

Jacqui Smith: The hon. Gentleman's argument appears to be based on a misunderstanding of the legal definition of public policy. I shall deal with that in a moment.
 Clause 85 replaces section 53 of the 1976 Act. It allows the High Court to annul an overseas adoption or a convention adoption order on the ground that it is contrary to public policy. That is provided for in article 24 of the Hague convention, which states: 
 ''The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly contrary to its public policy, taking into account the best interests of the child.'' 
In his lengthy speech, the hon. Gentleman seemed to imply that the Government would attempt to influence the High Court politically. Not only would that be undesirable; it would probably be impossible. 
 I shall try to reassure the hon. Gentleman by clarifying the legal position on public policy. First, the test of public policy is a high one, and it is legally defined. It is not a political issue; it is more akin to whether something is acceptable on moral grounds. It is usually considered morally wrong for an individual to benefit from something that offends basic moral principles—for example, if there was evidence that proper procedures had not been followed, that a crime had been committed or that a child had been abused or trafficked. The test is usually used if it would be difficult to justify something happening automatically under the law simply because it usually does so—for instance, to ensure that individuals do not automatically gain financial reward as the result of criminal activities such as murder.

Robert Walter: I hope that the Minister will agree that the purpose of a convention on intercountry adoptions is to ensure that such things cannot happen— indeed, the contracting states to the convention have agreed that such procedures will not be permitted. Why, therefore, should one state be allowed to step in and make a judgment on the procedures followed by another?

Jacqui Smith: One reason, as I have suggested, is that it is allowed for in the Hague convention. The hon. Gentleman is right about the point of the safeguards that the legislation puts in place, and the work that has been undertaken to allow us to ratify the Hague convention, to which I shall return in a moment. All the safeguards and procedures laid down by the Hague convention are designed to prevent activities such as those under debate.
 It may interest and reassure the hon. Gentleman to know that it is likely that the provision would be used only in especially difficult cases, so it is unlikely to be used frequently. Indeed, it has never been necessary to use section 53. However, the Committee could surely not imply that it could never foresee circumstances in which it was appropriate to apply to the High Court to 
 annul an adoption order, given that that is possible under the convention and given the high tests that would have to be passed. If hon. Members genuinely could not think of a situation in which that might be necessary, the argument would have some validity. The clause provides a legal possibility for circumstances that are extremely unlikely, for which high tests would have to be passed, and in which hon. Members might feel that we would want to annul an adoption order. 
 The order could only be made by the High Court if it could be convinced that to recognise an adoption order would offend basic moral principles. Examples of when an adoption order could be annulled include when the authority that made the order had no jurisdiction to do so, or when full information was not given to the court even if all the procedures had been properly followed and, if it had been, the adoption would not have gone ahead. Also, the provision could be used to ensure that the best interests of a child who had been subject to trafficking or abuse were protected, if that could be done by annulling or refusing to recognise the adoption order. 
 The amendments would make recognition of adoption orders made under the convention and as overseas adoptions automatic. There would no longer be any opportunity for the order to be overturned, even if that were in the best interests of the child and it was not appropriate for that person to be considered the child of individuals who might have abducted or abused them. As individuals become more mobile and recognition under UK law of adoption orders made outside the British isles becomes more commonplace, it is important that a protection remains for those who have been adopted in circumstances that we would not want to happen or be recognised in the UK.

Robert Walter: The Minister is describing procedures and protections, but those are the ones that we have given to the central authority. Why are we now saying that the central authority that we have set up is not competent, and that we need an extra measure—one that she said had never been used in 25 years—through the High Court?

Jacqui Smith: The central authority is important in relation to the procedures undertaken to carry out the adoption order. My argument remains that it is possible to consider circumstances in which all those procedures had been correctly followed, but it would be morally repugnant for the adoption order to continue to be recognised. It is important to point out that the clause also relates to overseas adoptions that are not made under convention procedures. The amendments could put children's best interests at a disadvantage. Even given the very high test that I outlined, they would make it impossible to overturn an order in exceptional circumstances.
 The hon. Member for East Worthing and Shoreham suggested that the Government might be drawing back from ratifying the Hague convention, but I reassure him that we are not. We are consulting on the regulations and guidance that are necessary to bring into force the provisions of the 1999 Act that will allow 
 ratification of the convention. We intend to ratify in the spring, after making regulations for England, Wales and Scotland under the Act and regulations for Northern Ireland under the equivalent 2001 Northern Ireland legislation. 
 Given the reassurance on our commitment to the Hague convention and my other points, I hope that the hon. Member for North Dorset will withdraw the amendment.

Robert Walter: The Minister made a number of interesting points in her deliberations on the amendments. The most interesting was that the provision exists in the Adoption Act 1976 but it has never been used. That is a good reason to question whether we should repeat the phraseology in subsequent legislation, particularly given that we introduced a central authority under the Adoption (Intercountry Aspects) Act to ensure that adoptions fall within the bounds of generally agreed public policy.
 I am concerned about the effect that perpetuating the expression in the clause might have on an adoption that is approved by the central authorities in two contracting states—the Minister referred to non-convention states, which I shall mention later—that have agreed to abide by all the provisions of the Hague convention. The High Court could overturn what those competent authorities do, which could lead to all sorts of pain and suffering, particularly on the part of the adopted child. What will we do with a child who has been adopted according to the laws of two member states and is living with its new adopted parents in the United Kingdom? Should we deport it on the ground that the High Court decides that it is contrary to public policy for the parents to have that adopted child in their care? I ask the Minister to think again. 
 I said that no reservations were permitted under the convention. The Minister cites article 24, which states: 
 ''The recognition of an adoption may be refused in a Contracting State only if the adoption is manifestly''— 
that word does not appear in the Bill— 
''contrary to its public policy, taking into account the best interests of the child.'' 
It says that the adoption may be refused, not annulled. The refusal of the adoption would come at a much earlier stage, when the adoption agencies and the competent authorities were involved—

Jacqui Smith: If fact, the convention says that the recognition of an adoption may be refused.

Robert Walter: Yes, the Minister is correct. It does say
''the recognition of an adoption''. 
However, I feel that the recognition of an adoption, once granted, should not be annulled. If all the legal procedures required in two contracting states to the convention have been gone through to secure that recognition, it seems to me, to use the term in article 24 of the convention, to be ''manifestly'' unfair to the child that they should then be told, ''Your adoption is 
 contrary is public policy and so you'll have to go back from whence you came.'' I could not contemplate that, and nor, it is clear, could the Minister, because she tells me that the provision has never been used in the 25 years since the passage of the Adoption Act 1976. 
 The form of words is bad, and I sincerely ask the Minister and her officials to re-examine the provision for annulment of convention adoptions. I would, however, concede that if the adoption is not a convention adoption but an overseas adoption between the United Kingdom and a non-convention country, the High Court might be able to have some say—not in the individual case, but in how the law is interpreted. We have seen many cases of intercountry adoptions conducted in indefensible circumstances. Some kind of legal precedent should be set by the High Court for dealing with such cases when they do not involve two competent authorities as recognised under the Hague convention, but only an authority or agencies in this country. 
 For non-convention adoptions, input from the High Court might be desirable, but for convention adoptions, the clause goes too far. Because it has never been used, it is, to some extent, irrelevant. It reeks of unnecessary law, granting powers to intervene and overturn a perfectly legitimate adoption for which the correct procedures have been followed, on grounds that, were they valid, would have been considered during those procedures. As I said, I ask the Minister to consider the phrasing of the clause and the powers that it gives to the High Court. On the basis that I am sure that the Minister will re-examine the clause, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 85 ordered to stand part of the Bill.

Clause 86 - Section 85: supplementary

Robert Walter: I beg to move amendment No. 168, in page 47, line 19, leave out 'England and Wales' and insert 'the United Kingdom'.
 The amendment relates to my confusion over the area to which we refer when we make adoption law. I have been here before, and I see that the hon. Member for Meirionnydd Nant Conwy is present. I do not seek to prevent him from leaving the Room. When we discussed the Children's Commissioner for Wales Bill, we considered what the competent authorities were in England and Wales, in the United Kingdom, in Scotland and in other parts of what are called the British islands—although we are still not entirely sure what that means. 
 This is a probing amendment. I want to know whether it is logical to disbar courts and other agencies in one part of the United Kingdom—which I still regard as a unitary state—from processing applications from people who are resident in another part.

Meg Munn: Will the hon. Gentleman make clear his understanding of the United Kingdom? I was enlightened last week on the subjects of the classics and history, and hope to be equally enlightened on the subject of geography.

Robert Walter: I am grateful for the hon. Lady's intervention. In my understanding, the United Kingdom is the United Kingdom of Great Britain and Northern Ireland, the constituent parts being England and Wales, Scotland and Northern Ireland. As a consequence of devolution, some powers may have been devolved to the National Assembly for Wales—although the clause refers to England and Wales—some to the Scottish Parliament and some to the Northern Ireland Assembly. I think that that last is currently a valid body, but I am not sure because it goes in and out of validity. My point is a general one. We are, at the end of the day, a country.

Elfyn Llwyd: The British state is one state, which consists of Scotland, England, Wales and part of Ireland. Those are four countries.

Robert Walter: I thank the hon. Gentleman for his intervention. I regard the United Kingdom as a country. If the hon. Gentleman wants to define it as a state as opposed to a country, that is a matter for his judgment. However, I shall continue to refer to it as one country. I say that as someone who is Welsh by birth and regard myself as a Welshman, especially when a rugby match is taking place. For the purposes of legal definition, we are a country. The Bill often refers to the United Kingdom and the British islands—we are not entirely sure what that means, but someone will no doubt enlighten us as we proceed—to England and Wales and occasionally to
''the Channel Islands, the Isle of Man or any colony''. 
We occasionally refer separately to Scotland and to Northern Ireland. I believe that those who seek to interpret the law would be grateful if we tidied up the geographical definitions in the legislation. It will lead to a great deal of confusion on the part of those for whom we are making law if that is not done. Do we really mean, as I have highlighted in the amendment, that 
 ''No application may be made under section 85(1) in respect of an adoption unless immediately before the application is made . . . 
 (b) the adopter or (in the case of a married couple) both of them, habitually reside in England and Wales''?

Meg Munn: I am again a little puzzled by what the hon. Gentleman is saying. Having worked in social services for many years under a great deal of legislation, I know that it is common for some legislation to refer to England and Wales and other legislation—or different parts of the same legislation—to refer to Scotland. In my experience, people generally seem to know what they are supposed to do.

Robert Walter: The hon. Lady is correct that law is often made on the basis that it relates to England and Wales. However, my understanding is that when the Bill is enacted it will say not only that it
''extends to England and Wales only'' 
but that 
 ''The following extend also to Scotland and Northern Ireland'', 
after which there is a list of sections. 
 The Bill makes provision for territories that are described as ''the British Islands'', and for colonies—I shall come to that in debate of the next amendment—the Channel Islands and the Isle of Man. The probing amendment seeks consistency from the Minister in application of the law. 
 I return to the point on which the hon. Lady intervened. Are we saying that if both members of a married couple, or an adopter, do not habitually reside in England and Wales, they are somehow precluded from adopting a child in England and Wales and will have to apply under different provisions in a different jurisdiction within the United Kingdom for an adoption order to be made? It should be possible for those from Scotland, Northern Ireland, England or Wales to adopt children from England, Wales, Scotland or Northern Ireland—wherever they wish to carry out that adoption—without having to think about which jurisdiction they are under.

Kevin Brennan: Does the hon. Gentleman agree that, as someone who was born in Wales, he would find it strange if he were described as having been born in England and Wales? Does he therefore agree that subsection (2)(b), which states that the adopter should be habitually resident in ''England and Wales'', is outdated, and that the term should be replaced with ''England or Wales''?

Robert Walter: The hon. Gentleman has made an interesting suggestion. I do not feel competent to answer his question. Perhaps the Minister can do so—

George Stevenson: Order. Perhaps I can help the hon. Gentleman by referring to the amendment. It does not specify ''England or Wales'', but ''England and Wales''. Our debate must abide by the terms of the amendment.

Robert Walter: Thank you, Mr. Stevenson.

Jonathan Djanogly: The same problem arises for companies that are incorporated in England and Wales. The issue is relevant not only to the Bill, but to the general breadth of our law.

Robert Walter: I thank my hon. Friend for that clarification. It is a matter of fact that all primary legislation for England and Wales is made in the House as primary legislation for England and Wales.
 Through my amendment, I seek to draw out some concept of what prospective adoptive parents would think, given boundaries that they might not recognise. They would recognise Scotland and Northern Ireland, of course, and also different county jurisdictions. We are considering the application of adoption procedures in the United Kingdom. I seek the Minister's clarification that the provision will not prevent children from being adopted across internal borders in the UK, and that we can view the UK as a single unitary state.

Elfyn Llwyd: Although I appreciate what the hon. Member for North Dorset said about references to the United Kingdom, the British isles, England and Wales and so on, I think that I am right to say that the reference in subsection (2) is to the legal jurisdiction of England and Wales. There would equally be a Scottish and a Northern Irish jurisdiction. He is right to probe on the subject, but the answer will simply be that the Bill will apply in England and Wales, with parallel Bills in Scotland and the north of Ireland. Wherever a possible adopter resides, he or she will put in train his or her application for adoption under the legislation that applies in that part of the British isles.

Jacqui Smith: We have moved from discussions on Europe to discussions on the nature of the United Kingdom and the British islands. Some Opposition Members seem to want to turn the clock back even beyond the devolution proposals implemented by the Government to a period when the UK was an amalgam with no differences between the legislation in its different parts. I suspect that, if we looked at the history books, we would see that such a time never existed. As my hon. Friend the Member for Sheffield, Heeley (Ms Munn) pointed out, such differences have not caused significant difficulties so far.
 I am a little disappointed that hon. Members are not intimately aware of the provisions of the Interpretation Act 1978, which sets out that the United Kingdom constitutes England, Wales, Scotland and Northern Ireland, and that the British islands are the United Kingdom, the Channel Islands and the Isle of Man. I have a bad feeling that we shall return to those definitions in a minute. 
 Clause 85, as we discussed, allows the High Court to annul an overseas adoption or a convention adoption order on the ground that the adoption is contrary to public policy. Clause 86 specifies that the application for the annulment of overseas adoptions or convention adoption orders should be made in the prescribed manner and within the prescribed period. The two clauses replace sections 53 and 54 of the Adoption Act 1976. Those sections apply only to England and Wales but, as the hon. Member for Meirionnydd Nant Conwy helpfully pointed out, equivalent provisions are made in Scottish and Northern Irish legislation. Orders made under clause 85 would be recognised in Scotland and Northern Ireland, and any equivalent orders made there would be recognised in England and Wales. 
 The hon. Member for North Dorset expressed concern about the recognition of adoptions in the four countries of the United Kingdom. Under clause 63, adoption orders made in one of the jurisdictions of the British islands are recognised in the other jurisdictions. The amendment would allow an order to be applied for in a court in England and Wales by anyone habitually resident in any part of the UK, rather than anyone habitually resident in England and Wales. That is not consistent with current legislation, nor with the idea of a court's jurisdiction outlined by the hon. Member for Meirionnydd Nant Conwy. It is not necessary, as anyone habitually resident in Scotland or Northern Ireland could apply to a court in Scotland or 
 Northern Ireland for the same sort of order. The court's jurisdiction depends on establishing residency or showing that an action has occurred in that country, and that is for the court to decide. 
 It is important to ensure consistent access to the provisions of clause 85 in any part of the UK, which is what concerned the hon. Member for North Dorset. I hope that I have reassured the Committee that that is possible. I therefore hope that the hon. Gentleman will withdraw the amendment.

Robert Walter: As I said at the outset, I tabled a probing amendment. The Minister has responded, although not necessarily to my absolute satisfaction. She reiterates that someone habitually resident, let us say, in Scotland cannot apply to a court in England for an adoption order. That is an unfortunate consequence of several historic occurrences, but we cannot rectify it under the Bill. The Minister has given us some helpful definitions, and we can rest reasonably happily now that we know what is meant by the provision—although I would have preferred it if the amendment had been accepted. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 86 ordered to stand part of the Bill.

Clause 87 - Overseas determinations and orders

Robert Walter: I beg to move amendment No. 169, in page 47, line 28, leave out 'colony' and insert 'British Overseas Territory.'.
 I fear that it is my turn again. The term ''colony'' seemed to be shouting out at me when I read clause 87. In British law, that term obviously goes back quite some time. We are still on the subject of definitions: perhaps we should get them right. If my understanding of procedures in the House is correct, British colonies have not been so named for some time; they have been renamed British overseas territories, and legislation before the House at the moment grants their citizens the right of abode in the United Kingdom. 
 This is a probing amendment. I am intrigued about why legislation in 2001 still uses the term ''colonies'' to describe what we have correctly renamed British overseas territories. It is a throwback to an earlier time. We do not refer to the Administration of those territories as our colonial Administration, and we are responsible only for their external relations, not their internal government. We should perhaps not continue to incorporate the term ''colony'' in new legislation. I shall be interested in the Minister's response.

Henry Bellingham: My hon. Friend made an interesting point. The word ''colony'' has disappeared from the lexicon, and we have rightly moved on to use the term ''overseas territories''. My hon. Friend is right to note that a Bill before the House will give the
 citizens of our few remaining overseas territories extra rights. I would like it to go further, and I hope that the Government will consider that.
 Those issues are relevant to the clause, because the Government's thinking in it has not moved on sufficiently. Now is the logical time to ensure that overseas territories are properly represented in Parliament so that they can invoke legislation such as the Bill. We should move to the system that exists in countries such as France, whose former colonies are now overseas territories and part of la France—

George Stevenson: Order. I tried to catch the hon. Gentleman's eye, but failed to do so. I think that he knows what I am going to say. I would be most grateful if he stuck to the amendment.

Henry Bellingham: My point is important. If overseas territories were represented in Parliament, they would be able—

George Stevenson: Order. Yes, but with the greatest respect, we are not debating whether overseas territories should be represented in the House. That should be debated elsewhere. I refer the hon. Gentleman back to the amendment.

Henry Bellingham: I have great respect for your skills as a Chairman, Mr. Stevenson, and I shall endeavour to keep my remarks in order.
 Goodness knows what the Government were thinking when they included the word ''colony'' in the Bill. It is a throwback to imperialist thinking, and I was under the impression that we had moved on. My hon. Friend the Member for North Dorset is right that the word sends entirely the wrong signals. It is not only clumsy drafting, but a basic mistake. 
 Conservative Members feel strongly about the issue because we feel strongly about our overseas territories, which we do not want to insult or patronise. We feel strongly that they have much to offer, particularly now that we are left with a hard core of such territories. Once, there were big questions about Hong Kong's future as a dependent territory and about whether part of it would remain with Britain ad infinitum or whether all of it would move back to China under the terms of the lease. However, that is history, and we are left with 14 overseas territories. To call them colonies, as the Bill does, is insulting. It is patronising and it sends completely the wrong signals. I urge the Minister to support the amendment.

Jacqui Smith: The hon. Member for North Dorset has probed long and hard this morning, and he has finally hit the jackpot. Clause 87 allows for the recognition of a decision made by an authority in a country that has ratified the 1993 Hague convention or in the Channel Islands, the Isle of Man or any colony where it has the power to decide that an adoption order should be revoked or annulled. If an authority in one of the specified countries decides that a convention adoption should be either annulled or confirmed, that decision will have effect in England and Wales also. The hon. Gentleman's amendment seeks to replace the word ''colony'' with the phrase ''British Overseas
 Territory''. He is right; the British Overseas Territories Bill is going through Parliament. We believe that the clause should be amended to take account of the terms used in that Bill. We shall consider what drafting change will be most appropriate and will table an amendment on Report.

Robert Walter: I am lost for words. I am grateful for the Minister's assurance that, although my relatively straightforward wording is not immediately acceptable, a similar form of words will be introduced as a Government amendment on Report. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Henry Bellingham: I have a couple of questions for the Minister. Subsection (2) states:
 ''If the authority makes a determination in the exercise of that power, the determination is to have effect for the purpose of effecting, confirming or terminating the adoption in question or, as the case may be, confirming its termination.'' 
I am not sure that that wording is as sharp as it could be—we considered tabling an amendment to make it more logical. Does the Minister agree that it does not flow very well, especially in the last line? Is it really necessary to repeat ''confirming its termination''? As she knows, I believe in trying to keep things simple, straightforward and logical. It could be that such wording is required in order to make sure that the law stands up. Will she comment on that?

Jacqui Smith: The clause, as I have said, allows for the recognition of a decision made by an authority in a country that has ratified the 1993 Hague convention or in the Channel Islands, the Isle of Man or overseas territory where it has the power to decide that an adoption order should be revoked or annulled. Therefore, if an authority in one of the specified countries decides that a convention adoption should be annulled, that decision will have effect in England and Wales too, and the adoption order will not be recognised. The hon. Gentleman is concerned about the wording of subsection (2). The wording, as it stands, is legally necessary to confirm a termination as well as to confirm or terminate an order—two separate things are covered in that subsection. I hope that I have reassured him.
 Question put and agreed to. 
 Clause 87 ordered to stand part of the Bill.

Clause 120 - Scottish restriction on bringing children into United Kingdom

Henry Bellingham: I beg to move amendment No. 178, in page 67, line 24, leave out 'British Islands' and insert 'United Kingdom'.

George Stevenson: With this we may discuss the following amendments: No. 179, in page 67, line 26, leave out 'outside the British Islands' and insert 'abroad'.
 No. 181, in page 67, line 43, leave out 'British Islands' and insert 'United Kingdom'.

Henry Bellingham: These amendments continue our earlier discussion. Through them, I propose to clarify once and for all what we mean by ''British Islands''. I mentioned briefly that I was not especially happy about the expression. As the Minister pointed out, the phrase has a definition under the Interpretation Act 1978, but events have moved on since then.
 We have been keen to build close relationships with the Dail in the Republic of Ireland. Since 1978, a series of initiatives has tried to bring the two Parliaments closer together, including the Anglo-Irish treaty and other initiatives that have flowed from it, including the British-Irish Inter-Parliamentary Body and the Good Friday or Belfast agreement. Many important initiatives have been made under which cross-border bodies have been set up, to try to break down the idea of the British isles. 
 The expression ''British Islands'' may evoke nostalgia among various people, especially Conservative Members, for the days when the Republic of Ireland was part of the UK and it was not necessary to talk about the British isles with any regard for people's sensitivities. However, the Republic of Ireland is concerned about the use of the phrase. As various members of the Committee who are on the inter-parliamentary body will know—I think that my hon. Friend the Member for Meirionnydd Nant Conwy is—the expression often leads to offence. The Irish find it patronising, archaic and in many ways inappropriate. 
 That is why whenever there is a bilateral meeting of any kind between the two countries, we talk about ''these islands'', which encompasses the islands around this country—the Isle of Man, Guernsey and Jersey—and the islands around Ireland. Obviously, many issues of mutual concern affect all those islands. Once or twice, people have talked about the British isles in the inter-parliamentary body and it has led to considerable offence, as my hon. Friend the Member for Meirionnydd Nant Conwy will recall. 
 I would like to see ''British Islands'' removed from the Bill. It is good to be nostalgic at times, but we must bear in mind the concerns of the Irish, our nearest neighbours in the west. The links between our two countries have improved substantially. Every initiative that has arisen from the Belfast agreement has led to the countries working together, and there are several more initiatives to ensure that we work more closely on social legislation. Hon. Members will be aware that Irish citizens in this country have the right to vote and the same rights of citizenship as us. We have a special relationship with Ireland, although it is a separate sovereign country. Since 1989, citizens of this country have had the rights to vote and claim benefit in Ireland. For example, they have the same rights as Irish citizens to claim subsidised bus passes. The Government made a concession a moment ago on the amendment tabled 
 by my hon. Friend the Member for North Dorset, which would have removed the word ''colony''. In the same way, it is important that they should remove the words ''British Islands''. 
 The Minister pointed out a moment ago that under the 1978 Act a legal definition is attached to the term ''British Islands''. That distinguishes it from the term ''United Kingdom'', which manifestly does not include the two Channel Islands, Jersey and Guernsey, or, indeed, the islands attached to Jersey—Alderney and Sark. It does not include the Isle of Man either. Therefore, I understand the term ''British Islands'' to mean, in a strict legal context, the United Kingdom and those islands. I asked the Minister on—I think—Thursday whether that was right, and she was not able to give me a clear answer. I think that she has since been briefed by her civil servants, who have updated her on the legal definition of the United Kingdom. The islands that I mentioned are not included in it; they have a separate legal status. 
 It is interesting, to return to a point that I made earlier about our close relationship with the Irish Republic and the British-Irish Inter-Parliamentary Body, to note that we have brought on to that body Members of the Scottish Parliament, the National Assembly for Wales and of the Northern Ireland Assembly, a Member of the Tynwald of the Isle of Man, and Members of the Parliaments of Jersey and Guernsey. The result is truly an inter-parliamentary body, encompassing the Parliaments of all these islands' countries, including the one separate sovereign state, the Republic of Ireland. That arrangement is now working well. I should like more inter-parliamentary bodies to be set up between the countries concerned, to deal, particularly, with social legislation, health and transport. 
 What does the situation that I have outlined mean for the clause? Simply, we must remove the words ''British Islands''. The amendment would replace them with the words ''United Kingdom'', but probably we should not do that. If the Minister's intention is to include the Channel Islands and the Isle of Man, that should be stated. We should, in that case, insert the words, ''United Kingdom, the Isle of Man, Jersey and its attached islands and Guernsey''. That would make it clear what was intended. It would also send a strong signal to our friends in the Irish Republic that we are not trying to patronise them or invoke nostalgia.

Julian Brazier: My hon. Friend has not mentioned the role of the Isles of Scilly. Is that because they have a different status, as part of England, or will he come on to the subject of those islands?

Henry Bellingham: That is a good point. The Isles of Scilly have a parish council, not a Parliament. As far as I am aware, although they have some devolved functions, their services, such as social services and education, are mostly provided by Cornwall county council.

Kevin Brennan: Do they have a Member of Parliament?

Henry Bellingham: Some functions are wholly devolved, but the body concerned is really a parish council which, in one or two specific local matters including parks and cemeteries, has an element of sovereign power.

Julian Brazier: Before my hon. Friend leaves the subject of the Isles of Scilly, I draw his attention to the sedentary intervention of the hon. Member for Cardiff, West (Kevin Brennan). I think that the answer to it is yes. The islands form part of a parliamentary constituency—South-East Cornwall, is it not?

Henry Bellingham: Yes, they have a Member of Parliament. In fact, the Isle of Man, Guernsey and Jersey do not have representation in this House because they have their own Parliaments. That is probably a mistake.

George Stevenson: Order. The hon. Gentleman is perfectly entitled and in order to advise the Committee of his interpretation of the terms ''British Islands'' and ''United Kingdom'', but I fear that we should not get into a discourse about whether one island looks after its parks and another its cemeteries. I hope that the hon. Gentleman will take that point and refer to the words on the amendment paper.

Henry Bellingham: We have digressed a little, but it is important to explain the background to the amendment, because unless one does, one could end up looking a little foolish. It is too bland an exercise simply to take the amendment as it is. I am keen for the Minister to accept the spirit of my amendment and the intention behind it, but not necessarily its current format. If it is her intention to include the Channel Islands and the Isle of Man in the provision, she must find a better definition of ''British Islands''. She should perhaps insert ''the United Kingdom, the Isle of Man, Jersey and Guernsey.''
 I have explained my intentions and, hopefully, convinced the Committee of the real sensitivities and concern in the Irish Republic at this crucial time when we are trying to build on the Good Friday agreement. The amendment is very much in line with what the Prime Minister is trying to achieve and I hope that the Minister will accept it.

Jacqui Smith: The hon. Gentleman appears to be trying to use an amendment to a Bill on adoption and children to further good relations between the United Kingdom and the Republic of Ireland and to change legal definitions relating to the United Kingdom and the British islands. Although I am sure that many members of the Committee would share his hope that relations between this country and the Republic of Ireland continue to develop, that important issue should not be mixed up with our aims in relation to adoption and children. The Bill is not the correct vehicle for making changes to definitions in law of the terms ''United Kingdom'' and ''British Islands''—definitions that were set out in the Interpretation Act 1978—although concerns about that may be expressed in the Committee. I am afraid that, for those reasons, it would not be appropriate to accept the hon. Gentleman's amendments.
 I should like, however, briefly to give the hon. Gentleman some assurance on one of his points about the Government's aims with respect to clause 120. Clause 120 provides for restrictions for Scotland on bringing children into the UK, in the same way that clause 80 does for England and Wales. It amends section 50A of the Adoptions (Scotland) Act 1978 to impose restrictions on British residents bringing or causing someone else to bring a child habitually resident outside the British islands into the UK with the intention of adopting the child in the UK, unless the person complies with prescribed requirements and meets prescribed conditions.

Robert Walter: I am interested in the Minister's remarks. Will she enlighten the Committee as to whether, as the Bill amends Scottish legislation, the Scottish Parliament will have the power to amend it to its original meaning?

Jacqui Smith: I do not know the answer to that question, but I will find out for the hon. Gentleman. The Scottish Administration are undertaking a review of adoption law, but I think that they share our view that consistency among the different countries in the United Kingdom is important. The Scottish Parliament, as I understand it, would have the ability to change its own Act. With the agreement of Scotland, we are trying to ensure consistency.
 Clause 120, alongside clause 80, ensures consistency. It also makes it a criminal offence for a British resident to bring, or cause someone else to bring, a child habitually resident outside the British islands who was adopted within the previous six months into the United Kingdom, unless the resident complies with prescribed requirements and meets prescribed conditions. A person will be liable on summary conviction to up to six months' imprisonment, or a fine not exceeding a statutory maximum of £5,000, or both. In event of the case being referred to the Crown court, he will be liable for up to 12 months' imprisonment or an unlimited fine, or both. 
 The clause covers residents of the British islands and defines external adoptions as those affected under the law of any country or territory outside the British islands. ''British Islands'' is defined as England, Wales, Scotland, Northern Ireland, the Channel Islands and the Isle of Man. That is consistent with the 1976 Act, which covers England and Wales, and the Adoption (Scotland) Act 1978. The amendments, as the hon. Member for North-West Norfolk knows, would mean that the clause covered residents of the United Kingdom alone and defined external adoptions as those affected under the law of any country or territory outside the United Kingdom. The United Kingdom is defined as England, Wales, Scotland and Northern Ireland. That would introduce restrictions on bringing children from the Channel Islands and the Isle of Man into the United Kingdom and would make an adoption order made in the Channel Islands or the Isle of Man an external adoption order.
 The Channel Islands and the Isle of Man have almost identical legislation to that of the United Kingdom and use the same assessment and adoption procedures. Adoption orders made in the Channel Islands and the Isle of Man are recognised in the United Kingdom and adoption orders made in the United Kingdom are recognised in the Channel Islands and the Isle of Man, which are recognised publicly as part of the British isles. For those reasons, it would be unacceptable to introduce added restrictions on bringing children into the United Kingdom from the Channel Islands and the Isle of Man and to treat adoption orders made in those countries as external adoptions. 
 The amendments would also mean that the clause would cover bringing into the United Kingdom for the purposes of adoption a child ''habitually resident abroad'' rather than ''outside the British Islands''. There is no legal definition of ''abroad'', which would make the clause too vague to implement satisfactorily. 
 The hon. Gentleman has had the opportunity to express his concerns about United Kingdom relations with the Republic of Ireland and about the interpretations and definitions in the Bill. However, I do not consider those issues appropriate to consider in relation to the Bill, and hope for those reasons that he will withdraw his amendment.

Henry Bellingham: I am grateful for that cogent explanation. I have two final questions.
 First, does the Minister know how many children are adopted into the United Kingdom from the Isle of Man and Channel Islands and how many from the United Kingdom into the Isle of Man and the Channel Islands? It would be interesting to hear that figure, if she has it to hand. 
 Secondly, the Minister did not address my suggestion, which would answer my concern that we must include in the definition the Channel Islands and the Isle of Man while avoiding the term ''British Islands''. She rightly said that we were not considering a Bill on adoption and children to improve relations with the Irish Republic, but does she not feel that we 
 could easily sort this out by using the words ''United Kingdom and the Channel Islands and the Isle of Man''?

George Stevenson: Order. I must refer the hon. Gentleman to the words of the amendment, which does not contain the additions that he suggests.

Henry Bellingham: Indeed, I accept that, but until the Minister gives us a logical reason for rejecting the amendment, we are entitled to suggest that there might be some merit in what I propose. Will she comment on my two brief points?

Jacqui Smith: I do not know the exact numbers of children, and understand that only a handful are involved, but I am not sure what point the hon. Gentleman seeks to make by determining the numbers. It is important that there is an ability to recognise adoption orders between the Channel Islands and the Isle of Man and the United Kingdom and vice versa. That is what we attempt to safeguard by rejecting the hon. Gentleman's amendment.
 Secondly, I made it clear in my response that this is not the place to consider definitions. If the hon. Gentleman wants to raise that point, he must do so elsewhere.

Henry Bellingham: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Hilton Dawson: On a point of order, Mr. Stevenson. It is a little difficult to focus on areas such as the Channel Islands or the Scilly Isles—

George Stevenson: Order. I apologise to the hon. Gentleman. I am advised that I must put the question.
 It being One o'clock, The Chairman proceeded, pursuant to Sessional Order D [28 June] and the Order of the Committee [27 November], to put forthwith the Questions necessary to dispose of the business to be concluded at that time. 
 Clauses 120 and 123 ordered to stand part of the Bill. 
Adjourned at one minute past One o'clock till this day at half-past Four o'clock.